Couchiching First Nation v. Canada (Attorney General), 2012 FC 772 (F.C.T.D.) (Near, J.) 18 June 2012

The Federal Court held that an Adjudicator appointed under the Canada Labour Code, RSC, c L-2 (Canada Labour Code) had breached natural justice and procedural fairness owed to the Applicant, Couchiching First Nation (CFN), when he failed to consider the cause for the termination of the Respondent, Aimee Adams (Ms. Adams), and only directed his attention to the procedures followed by CFN in the Ms. Adams’ dismissal. The Federal Court further held that the Adjudicator had disregarded the proper legal test for unjust dismissal.

CFN brought an application for judicial review of a decision issued on March 12, 2011 of an Adjudicator appointed under section 242 of the Canada Labour Code. The Adjudicator found that the Respondent, Aimee Adams, was unjustly dismissed by CFN because CFN’s Personnel Policy provided a legal right to a pre-termination hearing before Chief and Council.

Ms. Adams was employed with CFN to provide care to elders. CFN terminated Ms. Adams’ employment due to admissions relating to theft and attempted replacement of prescription narcotic medications of an elder patient. On hearing Ms. Adams’ admissions, the Band Manager first suspended her without pay and also told her that he would convey the admissions to Chief and Council at the next regularly scheduled meeting for a final decision regarding her employment status. A hearing was ultimately held in camera and a decision was made by the Chief and Council to dismiss Ms. Adams from her position. Following this termination, Ms. Adams brought an unjust dismissal complaint against CFN and requested the appointment of a labour Adjudicator. CFN’s Personal Policy requires a complainant employee to be notified and given an opportunity to speak before the Chief and Council. Based on a finding that Ms. Adams never had the opportunity to be heard, the Adjudicator concluded that Ms. Adams’ termination must be set aside because she was not afforded a procedural right in CFN’s own rules to which Ms. Adams was entitled. The Adjudicator did not allow CFN to tender evidence or make submissions concerning the reasons for Ms. Adams’ termination.

CFN’s application for judicial review raised the following four issues:

  1. Did the Adjudicator apply the proper legal test for a finding of unjust dismissal under the Canada Labour Code?
  2. Did the Adjudicator fail to grant the Applicant the right to make full submissions on the matter of reasons for termination and other matters material to the complaint?
  3. Did the Adjudicator breach the principles of natural justice by failing to allow for a hearing on the reasons for termination?
  4. Did CFN Personnel Policy grant Ms. Adams the legal right to a pre-termination hearing before Chief and Council in the circumstances of admissions of theft and dishonesty, or in any circumstances?

Justice Near held the standard of correctness was applicable to all issues raised by CFN: 

“The use of the proper legal test is a question of law (Dunsmuir v New Brunswick,2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 SCR 190 at para 50). The right to make full submissions and be heard on the reasons for termination constitute matters of procedural fairness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII), 2009 SCC 12, 2009 CarswellNat 434 at para 43). Finally, [4] assessing CFN’s Personnel Policy is sufficiently similar to the interpretation of a Band Constitution where this Court has adopted the standard of correctness in the past (see Ermineskin Cree Nation v Minde, 2008 FCA 52 (CanLII), 2008 FCA 52, [2008] FCJ no 203 at para 32).

With respect to the first issue regarding the proper legal test for unjust dismissal, relying on Bell Canada v. Halle, [1989] F.C.J. No. 555, 99 NR 149, Justice Near of the Federal Court concluded that the Adjudicator erred in his application of the proper legal test by refusing to hear evidence and make a determination as to the cause for termination. Justice Near stated, that, “[w]hile procedural deficiencies in the handling of the Respondent’s termination by CFN were considered significant, the Adjudicator was still required to consider the cause for her termination at the outset”. Justice Near further stated that, “This was stressed by this Court in Bell Canada v Halle, [1989] FCJ no 555, 99 NR 149 in discussing the appropriate test to be applied by an Adjudicator:

To begin with, I would say that the respondent's dismissal, assuming it to be otherwise justified, cannot be regarded as unjust solely because the applicant did not follow the dismissal procedure described in its internal directives to the letter. So far as I am aware, this procedure is not a condition of the employment contracts of Bell Canada employees. The applicant can therefore depart from it without giving rise to any objection, unless the departure causes an injustice. Contrary to what the adjudicator thought, therefore, it does not matter that the applicant did not follow the procedure described in its directives before dismissing the respondent. The question presented to him was whether the respondent had been unjustly dismissed. In order to answer this, he first had to consider the nature, sufficiency and merits of the reasons for dismissal. Accordingly, in the case at bar the adjudicator should have considered whether the applicant had any basis for complaint about the respondent's performance and whether this provided grounds for dismissal. If the adjudicator had answered these questions in the affirmative, he should then have considered whether the procedure leading to dismissal of the employee was fair. However, his duty was then to make a judgment on whether the dismissal procedure used by the employer, taken by itself, was fair or unfair regardless of the procedure described in the directives; and if the adjudicator concluded that the procedure used in the case at bar was unfair in itself, and that because of this the dismissal had been unfair, he should then in determining the compensation to which the respondent was entitled as a consequence of the dismissal have taken into account the fact that, though premature, the dismissal was not entirely groundless

With respect to the second issue regarding the right to make full submissions and the right to be heard on the reasons for termination, Justice Near held the Adjudicator breached the procedural fairness, in failing to allow evidence to be submitted and submissions made regarding the reasons for Ms. Adams’ termination. Justice Near held that s.242(2)(b) of the Canada Labour Code, “makes it clear” that while Adjudicators can establish their own procedures they owed to CFN by denying CFN the right to be given “full opportunity” to “present evidence and make submissions” and have “all pertinent information relating to the complaint” considered. Therefore, as CFN was not given the full opportunity to present evidence and make submissions as to the reasons for the termination, “a critical aspect of the complaint”, Justice Near held the Adjudicator did not consider all of the pertinent information in rendering his decision, which resulted in a breach of procedural fairness. Further, this failure alone would warrant the Court’s intervention.

With respect to the third issue regarding natural justice and hearing on reasons for termination, Justice Near held that similarly, natural justice or procedural fairness was violated by the Adjudicator’s related decision not to allow any hearing on the cause for termination. Rather, the Adjudicator focused solely on the procedures followed and Ms. Adams’ right to present her side of the story, but seemingly ignored the circumstances that gave rise to disciplinary action on the part of CFN. Justice Near, stated, “[t]he Adjudicator refused to consider the reasons underlying termination and confined the hearing to procedural matters. This prevented all aspects of the complaint from being fully assessed”.

With respect to the fourth and final issue regarding the CFN Personnel Policy and legal right to pre-termination hearing, the Justice held that given his findings, it was unnecessary to deal with the correct interpretation of the CFN Personnel policy and that the issue would have to be addressed by a new Adjudicator. However, Justice Near recognized, “that the interpretation of this Personnel Policy and the obligations flowing from it will likely continue to play a significant role in any reconsideration.”

Therefore, Justice Near held that, “by failing to provide an opportunity to address the issue of the cause for termination at the hearing and consequently in his decision, the Adjudicator breached natural justice and procedural fairness owed to the Applicant and disregarded the proper legal test for unjust dismissal”.

The Federal Court allowed CFN’s application for judicial review and remitted the matter back to a different Adjudicator for re-determination. In addition, nominal cost of $100 was awarded to CFN.

http://canlii.ca/t/frt5v

Isabella Mentina, Associate
Ottawa Office
Direct Tel: 613.787.3543
Email: imentina@blg.com

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Isabella Mentina

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